March 31, 2015

Indiana Governor Mike Pence—his entire state, really—has been hammered in the national press since last week's passage of a "religious freedom" bill. This New York Times headline says it all: "Indiana Law Denounced as Invitation to Discriminate Against Gays." ABC News' George Stephanopoulos took that angle in an interview with Pence on Sunday, asking repeatedly for a one-word answer as to whether the new law makes it legal for businesses to refuse service to gay couples.

Pence dodged, insisting that the media misunderstood the law's purpose. But had he been more honest, Pence would have said: George, Indiana doesn't need a new law to permit businesses from discriminating against gay customers. It's perfectly legal to do that right now.

That's because in Indiana, and in most other states, businesses who want to discriminate against gay customers face no obstacles under state law in doing so. The few statewide discrimination protections that do exist are mostly limited to employment, and often enough only cover government workers. There are exceptions—Oregon lawmakers have barred businesses from denying services to anyone on the basis of sexual orientation—but they're rare.

Federal civil rights laws are no help, either. For gays and lesbians, federal protections of any kind simply don’t exist. In fact, the only protection most gay people in America have against discrimination is the scattered, slender shields of municipal measures, often called fairness ordinances. They sometimes protect against discrimination in restaurants, hotels, and the like, but often focus just on housing or employment fairness.

It’s these laws—and the handful of anti-discriminatory statutes in states like Oregon—that are said to be at risk by the new wave of religious freedom laws like Indiana’s. They aren’t.

Consider what's happened across the river in Kentucky. Chris Hartman of Kentucky Fairness Campaign has led a statewide blitz trying to plant such ordinances in the rocky soil of Kentucky, and with his predecessors can boast of a handful of successes. In all, seven communities, from the state’s largest, Louisville, to the tiny Appalachian mountain town of Vicco, have passed laws that prohibit businesses from discriminating against gays.

Against that backdrop of isolated victories, Kentucky’s General Assembly did three years ago exactly what Indiana's has done. Though Governor Steve Beshear vetoed the bill, lawmakers overrode the veto and passed a religion freedom statute. I asked Hartman how many times businesses within the seven communities with protections for gays have used that statute to evade those local laws.

“Never,” he told me. What’s more, he said, it’s highly unlikely that such a tactic would work anyway. “All the [local] government has to show under these statutes is that it had compelling reason to pass the anti-discrimination ordinance. That’s not hard to do.”

As for the rest of Kentucky, just like most of Indiana, businesses don't need a religious basis to discriminate against gays—they don't need a reason at all.

Now that some 20 or so states have passed laws like Indiana's, life will continue as it always has for most gay Americans. That is, without any civil rights protections at all. That sad state of affairs isn’t going to change no matter what the Supreme Court decides this June when it finally rules on whether the U.S. Constitution forbids states from outlawing gay marriage.

If you're confused by all the hand-wringing on this case, you're not alone. When Cokie Roberts was asked Monday morning on NPR what the big deal was about the new law, the best she could come up with was: Its timing stinks. She was right. Many find the "timing" of the Indiana bill deeply disconcerting, just as they did last year when Arizona lawmakers presented Gov. Jan Brewer a similarly ill-advised piece of legislation. (She didn’t sign it.) That's because the timing question reveals motive in a way that all of Pence’s denials can’t brush away.

These recent religious freedom initiatives come as acceptance of gay marriage is growing, and many commentators have cited the Supreme Court's Hobby Lobby decision last year, which struck down Obamacare's mandate that employers provide insurance that covers birth control. But the actual impetus for the state religious freedom laws dates back a bit further, to 2011, when the New York Legislature capped a furious week of horse trading and gubernatorial arm-twisting to approve gay marriage. The bill's passage was a watershed for support for gay marriage, but also marked a turning point in the tactics of those opposed to gay marriage.

I'd been writing about and speaking to both sides of the gay marriage debate for years as a national legal affairs contributor to Time, and by 2011, even deeply religious conservative thinkers had conceded that gay marriage was inevitable. They were looking at young people's nonchalant acceptance of gay marriage, and at the steadily advancing number of states where gay marriage was legal, and seeing no prospects for turning the tide. Even if the Supreme Court refused to grant gays the right to marry, most opponents recognized that state legislatures will gradually expand that right to gay couples.

But out of that battle in Albany came a new line of attack for religious opponents, one that they hoped would paper over their waning credibility on the question of marriage itself. Instead of being seen as infringing on the rights of gay people, they reasoned, they ought to cast themselves as victims of a runaway majority.

The first to seriously sound the alarm was New York Cardinal Timothy Dolan. "We are living in New York, in the United States of America—not in China or North Korea," Dolan said. "In those countries, government presumes daily to 'redefine' rights, relationships, values, and natural law. There, communiqués from the government can dictate the size of families, who lives and who dies, and what the very definition of 'family' and 'marriage' means."

That was bracing stuff, and it lit a fire among conservatives who were eager to shift the debate away from the rights of gays and lesbians and onto more favorable ground, the rights of Americans to practice their faith. That movement is only now cresting in a wave of religious freedom statutes. You could see it last year in Arizona and in last week's victory for gay marriage opponents, Pyrrhic as it likely is, in Indiana.

"There’s something very dangerous happening in states across the country," Apple's Tim Cook, who is gay, wrote in a Sunday op-ed in The Washington Post. "A wave of legislation, introduced in more than two dozen states, would allow people to discriminate against their neighbors.... These bills rationalize injustice by pretending to defend something many of us hold dear. They go against the very principles our nation was founded on, and they have the potential to undo decades of progress toward greater equality."

While Cook’s warning is timely, it also glosses over the reality in Indiana and many other states with similar laws. The laws themselves aren't the problem.

The problem, easily disguised by the rising support for gay marriage, is the failure in Indiana and just about everywhere else, including Congress, to pass broad-based civil rights protections for gays and lesbians everywhere.

It's a problem that shouldn't be so hard to solve. After all, Pence says the law he signed isn’t meant to discriminate. He and other lawmakers have vowed to “clarify” it with new language. But if Indiana’s leaders truly wanted to ensure gays and lesbians aren’t subject to discrimination, then they could enact a law like the one Oregon—and the tiny Ohio river town of New Albany, Indiana—have passed. But when George Stephanopoulos asked Pence on Sunday whether he’d support a new law that would guarantee that's not the case, he had no difficulty finding a quick and simple reply: No.